Plaintiff's motion is without merit and is therefore Denied. The circumstances surrounding this dismissal with prejudice and plaintiff's motion for reconsideration merit sanctions. However, as attorney's fees by law are assessed only against the parties and not against their counsel, no attorney's fees are assessed in this case.
The hearing in this matter was scheduled before Deputy Commissioner Garner on 15 July 1998. Defendants' counsel was present, however neither plaintiff's counsel nor plaintiff was present for the hearing. Further, no communication had been received from plaintiff's counsel. During a telephone conference with plaintiff's counsel, Deputy Commissioner Garner learned that plaintiff was out of state and would not be present at the hearing to pursue his case. Therefore, defendants made a motion to dismiss this matter with prejudice, which was granted by Deputy Commissioner Garner on the condition that defendants make their last offer of settlement available to plaintiff for 30 days. As no settlement was reached, the matter was dismissed with prejudice as of 14 August 1998.
Thereafter, plaintiff did not file a motion for reconsideration or a notice of appeal. Finally, without filing a formal notice of appeal, plaintiff filed a Form 44, Application for Review, on 21 July 1999 over one year after the 15 July 1998 Order. Defendants filed a motion to dismiss pursuant to G.S. 97-85 based on plaintiff's failure to file a notice of appeal within 15 days as required under the statute.
In the event of excusable neglect on the part of the plaintiff, the Full Commission has the discretion to grant relief from a deputy commissioner's order. However, in the instant case, plaintiff has failed to show any grounds for excusable neglect as a matter of law. Furthermore, plaintiff's Form 44 was vague and did not provide adequate notice of his grounds for appeal in accordance with Rule 701.
In view of the foregoing and based on case law, the Full Commission has no alternative but to dismiss this case with prejudice. Therefore, plaintiff's motion for reconsideration is hereby Denied and the Full Commission's Order filed 13 January 2000 remains in full effect. G.S. 97-85 and Moore v. City of Raleigh, ___ N.C. App. ___, (COA98-1297) (1999). Each side shall bear its own costs.
This the _____ day of March 2000.
S/ _______________ DIANNE C. SELLERS COMMISSIONER
CONCURRING:
S/ _____________ THOMAS J. BOLCH COMMISSIONER
S/ ______________ CHRISTOPHER SCOTT COMMISSIONER
DCS: nwg